Saturday, March 10, 2012

It's a rare day when the Texas Court of Criminal Appeals makes the news for anything but the occasional overzealous death penalty ruling or suborning some cockamamie brand of junk science, but this week brings two tidbits of electoral political news that merit attention: Republican Sharon Keller levied a challenge with the Democratic Party to the candidacy of her presumed opponent Keith Hampton, aiming to keep his name off the November ballot. And Mark Bennett, the Houston criminal defense attorney who blogs at Defending People, signed up as a Libertarian candidate to run against Judge Barbara Hervey in the fall.

Let's take these two in order of importance: Since her fellow CCA judge Larry Meyers decided at the last minute not to challenge Sharon Keller in the GOP primary (after previously announcing he would do so), eliminating Hampton in the courtroom instead of the ballot box would relieve voters of any option whatsoever for replacing Keller for a fourth term as Presiding Judge. Given that, here's hoping Keith Hampton got his act together on his signatures before the filing deadline and his candidacy is approved. See Hampton's press release responding to Keller's gambit.

As for Mark Bennett (visit his campaign site), Grits must confess disappointment that he signed up to run as Libertarian when there's no Democrat running against Republican Barbara Hervey. Bennett understatedly declared that "the Libertarian candidate in a race for a seat on the Court of Criminal Appeals faces a steep uphill battle." In reality, as a practical matter, the Libertarian candidate has entered into a political suicide pact. Bennett himself demonstrates why in a post laying out vote results from 2008, the last CCA race coinciding with a presidential election:

Place 3:

Republican Incumbent

3,940,954

Democratic Candidate

3,477,426

Libertarian Candidate

215,427

Place 4:

Republican Incumbent

4,035,683

Democratic Candidate

3,336,944

Libertarian Candidate

249,921

Place 9:

Republican Incumbent

4,709,086

Libertarian Candidate

1,041,499

Your mileage may vary, but these downballot races barely run campaigns and do not typically spend money on paid media. Very few voters can even name a member of the Court of Criminal Appeals, much less meaningfully evaluate their record. And the MSM are lucky to devote one story per election to the race at any given outlet, with political reporters generally understanding as little about the court as the general public. As a result, CCA vote totals derive almost purely from party identification.

Let me step back for a moment to make clear that I respect Mark Bennett tremendously, both as an attorney (by reputation) and as a writer, and that's speaking as someone who may have read every single word he's written, or close to it, virtually since the day he began Defending People. He's a great guy and I think he'd make a terrific judicial candidate. Now let me proceed to chastise him, though merely on grounds of political naivete and perhaps a wee bit of selfishness, not ill intent.

(Grits should add that, despite my various policy differences with Judges Hervey and Keller, neither woman has ever been anything but extraordinarily gracious and polite toward me. Judge Keller seems like an authentically sweet person on a personal level, though admittedly she's never wanted to chit chat much, while I genuinely enjoy Judge Hervey's company. The fact that I'd like to see the voting bloc responsible for decisions like this one and this one broken up on the court doesn't mean I hold any personal animus toward either of them.)

Bennett tells us he chose to run for the Court of Criminal Appeals because the slot against Barbara Hervey was the only one statewide where Libertarians hadn't lined up a candidate. Well, guess what? That means that was the single race where - before Bennett filed as Libertarian - a candidate who seriously wanted to unseat Hervey and begin voting and writing opinions in her stead could have filed as a Democrat and had the best chance in more than a decade of unseating an incumbent statewide Republican.

Libertarian votes are protest votes - the electoral version of "none of the above." If there were no Libertarian candidate, most of those votes would go to the non-incumbent, which in Texas means to the Democrat, or else those folks just wouldn't vote at all. I've always inferred from the large Libertarian vote in CCA races that there's a disproportionate amount of dissatisfaction with the Court of Criminal Appeals among voters under Sharon Keller's leadership, or else why would the Libertarian totals get so high when a Dem is absent? In other races where Rs run unopposed by a D, L totals are typically much lower.

So Bennett's candidacy in Grits' estimation represents not a cause for celebration but a missed opportunity to unseat a member of the court faction who, with Judge Keller, has systematically slanted the court's jurisprudence far to the pro-prosecution end of the spectrum. That said, Judge Hervey - both in several notable opinions and her work with the Criminal Justice Integrity Unit - has distinguished herself as more thoughtful and slightly less hard-line than Sharon Keller, but in the scheme of things the two women's records aren't all that different, particularly compared to where a Mark Bennett might come down on the issues.

Bennett nobly announces that "I don’t want a single vote from anyone who can’t explain to me what my job will be if I’m elected." Translation: He doesn't actually want to be elected. Why would he, since he grants elsewhere that "getting elected would entail a brutal pay cut"? Sure, as Bennett declared on Defending People, this is "an office in which [he] could do real and lasting good." But the harsh truth is if the goal was to get on the court and do good instead of just talk about it, he'd have run as a Democrat or in the GOP primary.

Running quixotic campaigns for office to "educate" the public about this or that subject or to "send a message" is about as ineffective a tactic imaginable, substituting a single candidate's personal ambition for the policy goals of whatever ideals one hopes to champion. The only reason to run for office is to try to win, because power comes with winning and elections are how we decide who gets to wield it. That's all it's about. If you want to "educate" people, write on your blog or even better, use the money you were going to spend on a campaign on paid advertising to promote your message. More people will receive it that way.

Grits has opined for years that the CCA races (and to a lesser extent, the Texas Supreme Court) are the Texas elections where Dems have far and away the best chance of unseating a statewide Republican. Bennett notes that "in the closest 2008 Court of Criminal Appeals Race there was more than a 200,000-voter difference (that is, the result would have been different only if more than 200,000 voters had [switched their votes]) between the winner and second place." That's not an insurmountable margin, particularly compared to other statewide races, if a serious candidate were to run an actual, well-resourced campaign. If there were no Libertarian candidate and most of those L protest votes went to the D challenger, the race tightens up considerably. In an R v. L matchup, though, the risk of success is a null set. Bennett's lotto numbers have a better chance of coming up.

Keith Hampton, however, has a puncher's chance to defeat Sharon Keller if he can make it onto the ballot, particularly in a year where conservative voters could stay home if Mitt Romney is the GOP presidential nominee. That's where the real action lies, to the extent it's possible for any Dem to win a statewide race in Texas at this historical juncture. Bennett's candidacy will be fun for his readers - and I hope for him - but regrettably inconsequential.

9 comments:

The Fishing Physicist
said...

The reason to run as a Libertarian is simple enough. It’s because many Texans, myself included, are LOATHED to vote for a Democratic candidate. At the national level I simply refuse to vote for ANY Democratic candidate, period, end of story. At the state level I’m only marginally more open to doing so. Though I’m active in GOP primaries that does NOT mean that just being a GOP is a good enough reason for me to vote for you. I have never voted for Leo Berman though I’m his district. I LOATH Linda Harper-Brown to such a degree that I’d vote for almost anyone but her. Anyone that supports red light camera systems is NOT to be trusted. It more than demonstrates that they are far too fond of BIG government, nay BIG BROTHER for them to garner anything but opposition on my part. Bob Deuell lost my support when I found out that he not only supported red light cameras, but was a leading propionate of RLCs in the Texas Senate. The bottom line is I REFUSE to support any politician of any stripe that does not respect the rights of the individual.

Democrats at the national level over my lifetime have more than demonstrated that the care not one whit for individual rights. I lost what faith I had in the GOP with respect to the rights of the individual when they supported the so-called ‘Patriot’ Act.

When it comes to the rights of the individual neither of the major parties can be trusted at all period.

With Obama on the ballot, you can count on massive straight party Republican voting in Texas come November. Neither Democrats nor Libertarians have a prayer. That will be just fine insofar as the CCA is concerned. Hampton would be as bad as Charlie Baird was, if not worse. I think it's great that Keller will be back--- in spite of the best efforts of all of the bleeding hearts to vilify her over closing the clerks office at five. Can you say "vindication?"

Having run as the Libertarian candidate for CCA Pl. 2 in 2010 I can tell you it is far better than the most ineffective tactic imaginable. Especially when you are campaigning with no money." If you want to "educate" people, write on your blog or even better, use the money you were going to spend on a campaign on paid advertising to promote your message. More people will receive it that way."When you have no money, all those voters guides you dutifully respond to, that many voters take into the polls, are exactly what you hope for: the dissemination of your message.@2:16 If Keller gets elected because of the straight ticket vote you expect, how in the world is that vindication?

Hervey has always played a clever game, by being more subtle about her vicious pro-prosecution tendencies than Keller. But she's just as bad, if not worse. Moreover, if she had any real commitment to justice, she'd dissuade her husband, Richard Langlois, Manager of the Bexar County Republican Party and attorney, from taking capital habeas cases. He has routinely turned in terrible performances - the Frank Garcia is a good example - but is still receiving capital appointments. Hervey correctly recuses herself from cases involving her husband, but it's no real surprise that the rest of the court has held back from exposing Langlois' deficiencies. And Hervey has managed to cloak herself in an aura of having some actual concern for justice, when she's really just a Trojan horse for the prosecution.

Mark Bennett will not sacrifice his beliefs to win this race. Likewise he wouldn't sacrifice his integrity for political expediency once he was elected. Bennett is one of the few left in this world who couldn't be bribed, coerced nor intimidated by the other judges to arrive at a particular decision. I think he's running as a Libertarian because the party's platform most closely resembles his own ideals, and to run as a democrat solely to win an election would be to sellout his intellectual integrity. Politics has absolutely no business being in the judicial system. Actually, it shouldn't raise its head anyplace in the criminal justice system at all. We shouldn't be deciding judges based on their tags because politics unduly influence otherwise decent folk into doing favors for their connected party members. To better comprehend this, one needs to look no further than when Harris county district attorney Pat Lykos dropped arson charges against the wife of Texas Supreme Court Justice David Medina. http://www.chron.com/news/houston-texas/article/DA-drops-charges-against-Justice-Medina-s-wife-in-1746456.php

@2:16 Your comment "With Obama on the ballot, you can count on massive straight party Republican voting in Texas come November." is wishful thinking, we're already seeing Republicans for Obama at events held to re-elect him. As to Dem's being the party of Big Brother, you said yourself it was the R's who pushed and supported the Patriot Act the hardest. It's also R's who are pushing the greatest invasion of privacy I can imagine, known as the Sonogram bill. Keith Hampton is a widely regarded lawyer with more death penalty experience than the current members of the CCA combined. He's a good man and I look forward to seeing him on the court.

The Fishing Physicist is flat out wrong about Republican support for individual rights. Every since Nixon, Republicans have used the Bill of Rights as a target. The War on Crime and the War on Drugs were primarily aimed at expanding the budgets of law enforcement agencies and the prison construction industry. The only individual rights Republicans support are the rights or corporations to escape regulation. Democrats have been cowardly enablers of the Republicans by failing to oppose Republican appointees to the U.S. Supreme Court like Alito and Roberts who are advocates of the unbridled exercise of executive power.The Libertarians see no positive role for government, so they have to answer to the abuses of private power by corporations who are the real rulers behind both the Republican and Democratic parties.

I left the Democratic party to become acting State Chairperson of the Justice Party of Texas in order to support Rocky Anderson, the nominee of the new Justice party, for President of the United States. He is the only candidate who supports the Bill of Rights and opposes corporate domination of almost every area of government policy at the national and state levels. Learn more about Rocky Anderson at http://www.voterocky.org/ and about the Justice Party of Texas at: http://texas.justicepartyusa.net/

I ran for CCA as a Libertarian in 2006, 2008, and 2010. There were no campaign funds at all and I knew full well that I wouldn't win the seat. However, I was able to get the Libertarian message out to those media outlets that gave a damn, and I was able to help the party avoid having to fill out petitions in the following election cycle.

For years I voted for the lesser of two weevils, and I frankly got sick of it. The Republicans actually like big government more than the Democrats; they're just not as honest about it, and their bigness runs more to war/police state than nanny state. But a pox on both of the major parties. I finally decided that I would vote for who I wanted and no one else. Sure I'll vote for my favorite judges and prosecutors and clerks and sheriffs regardless of party, but those are the rare exceptions. And yes, I'd vote for Keith Hampton if he ran as candidate for the Green Party, the Socialist Party or the Bullmoose Party.

Southern, daily and good for you

Grits for Breakfast looks at the Texas criminal justice system, with a little politics and whatever
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